I would say that any patent that lacks hardware (chemical compound or physical device) wouldn't be valid.
Few patents target software per se. Most "software patents" actually claim (cover) computing hardware that implements some allegedly novel/non-obvious functionality. In any event, why allow someone to patent an application-specific integrated circuit that performs new function X but not a FGPA configured via a HDL that performs new function X?
Despite all the FUD in the comments, Apple has patented a very narrow set of gestures. The claims of the patent determine its scope and not anything else. Claim 1 is:
1. A computing device, comprising: a touch screen display; one or more processors; memory; and one or more programs, wherein the one or more programs are stored in the memory and configured to be executed by the one or more processors, the one or more programs including: instructions for detecting one or more finger contacts with the touch screen display; instructions for applying one or more heuristics to the one or more finger contacts to determine a command for the device; and instructions for processing the command; wherein the one or more heuristics comprise: a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display; a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display; and a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.
Although silly and probably invalid, the claim is limited to a very specific method of differentiating 1D vertical scrolls from 2D panning (using an angle of finger movement). One could easily implement multi-touch--and even 1D and 2D screen translation commands--with other methods.
The patent goes back to November 1999. Good prior art would have to be published before November 1998 (your paper looks like it was published in 2001).
The Federal Circuit disagrees with your interpretation of Rule 56 through ridiculous holdings like Dayco (329 F.3d 1369) and McKesson (403 F.3d 1048). Patent applicants follow the Federal Circuit and not the Patent Office as to what Rule 56 requires.
As you appear to work at Patent Office, I'm curious as to how you think filing a large IDS will "harass" the Patent Office into granting claims? It takes all of 5 seconds for the Examiner to initial form 1449 and move on.
Amazon, and all other patent applicants, tend to submit large volumes of information for consideration by examiners. Both federal law and patent office rules (37 CFR 1.56) require applicants to submit information that is "material" to patentability -- which federal courts have construed to mean anything that remote relates to the invention.
So, if you forget to submit a single page of information (out of 10 million) that has some marginal relation to your invention (in this case, probably a printout of every existing ecommerce site), your patent could be held unenforceable due to "inequitable conduct."
The patent system has many problems. Primary is that the American people subsidize the creation of intellectual property by paying for the expensive examination and challenge system, which we can ill afford with our current budget problems (and which was never fair to the public, anyway)
You clearly have no idea about what you are talking about. The Patent Office is the only agency that makes money (patent applicants pay more money in fees than it costs to run the Patent Office) so the people are not subsidizing anything. Until recently, Congress used to steal (divert) the PTO's extra fees to pay for other administrative agencies in addition to paying for the PTO.
But I would last all of 5 minutes before getting fired. The problem is as computer scientist and inventor and someone who knows the difference between an abstract idea and well thought out and unique implementation that solves original problems I would have to apply ethical standards to my work.
Actually, I think you would do quite well at the patent office, or anywhere else in the Bush administration. You seem to think that an executive-branch bureaucrat (patent examiner) should be able to independently and arbitrarily determine what the law is--regardless of the legislation passed by Congress or a U.S. courts interpretation of that legislation.
So, how about this for an idea. If he approves a patent that is subsequently challenged and voided the clerk loses twice their bonus and the patent office has to refund the application fee in full. And to make sure the applicant doesn't benefit from specious claims, they must pay a fine of 10 times the application fee to the government.
A patent can be invalidated due to prior art located anywhere in the word. Why should I have to pay a fine if I do an extensive electronic database search and get a patent, only to find out years later that my invention was written on one Greek paper in one Greek library, accessible only through a manual card catalog search in Greek at that library (note: these are the facts of a real case)?
What is needed is incentive to find _good_ patents. To add this incentive, how about a royalty type bonus system. A clerk who approves a patent that runs its full term gets a small bonus at the end of its life, related to how much money it has actually made through the sale of real products (litigation payments would be excluded).
Of the 7 million plus issued U.S. patents, only a small percentage (less than 1%) have ever been asserted or invalidated by a court. Under your system you are going to pay your bonus for 99% of all patents since most patents are never asserted in court and are never invalidated.
that the user has to lift and drop the 50lb weight 170 times before the LED will be illuminated. To publicly display the lamp, and fool the contest people, I'm sure the lamp was charged (by lifting the weight 169 times or by directly charging the lamp's battery) before the contest with a charge just below that required to light the LED.
when the average citizen cannot fully grasp the science behind the 'scientific reason', why should they be expected to trust it blindly?
This is why people go to doctors for medical advice. People used to trust their doctors to make informed medical decisions because the doctors have the education and training needed to make such decisions. I imagine it is a recent phenomenon that the uneducated masses believe they know more about a particular subject (like the neurological effects of thermisol) than trained professionals who have devoted their lives to studying the particular subject.
The Patent Office (executive branch) created rules that were contrary to the laws passed by Congress (legislative branch). The laws passed by Congress (the Administrative Procedure Act) state that the remedy in such a situation is to file suit against the agency (Patent Office) in federal court (judicial branch). The problem here is that the Patent Office overstepped the authority granted to it by Congress. Congress could change the law if it wanted to (and it might, see the Patent Reform Act of 2007), but the Patent Office can't change the law on its own.
This injunction will certainly last, the Patent Office clearly violated the law in promulgating these new rules.
This is the other problem. Why are they allowed to submit this much?
The law requires it. The Federal Courts have invented a doctrine known as "inequitable conduct" that requires a patent applicant and its attorney to submit every document they have access to that could potentially be relevant to the application. So, if you are a corporation with a resource library that relates to your products, you have to submit the entire resource library or risk committing inequitable conduct. In every patent infringement trial, the infringer accuses the patent owner of hiding information from the patent office, no matter how much information is submitted. So the natural recourse is to submit everything.
Under the current system, the easiest way for examiners to get quota points is to reject applications, which is exactly what they do. Over 95% of patent applications are initially rejected, which is why the patent process is so expensive. See SSRN for a published study that addresses the quota issue in detail.
The U.S. Court of Appeals for the Federal Circuit (the Court that hears patent appeals) recently addressed this issue (in the context of arbitration) and determined that you can't patent a method that can be performed mentally (e.g., all in a person's head). So, to answer you question, you can't patent a business method if it isn't limited to use of a particular machine (like a processor that executes an arbitration algorithm).
To achieve the similar stimulance to software development as when the movie industry moved to California to avoid the film patents that were holding the film industry back on the east coast.
How did the movie industry avoid film patents by moving to California? U.S. patents have been enforceable anywhere an infringer resides since 1836. The article you cite says that the courts broke up the patent trust on antitrust grounds, which allowed independent studios to freely operate. Perhaps the courts are also the best way to stop software patents?
The McMartin preschool criminal trial is a better example than the 20/20 episode you mention. In the McMartin case, hundreds of children told investigators they were abused because the children thought that was what the investigators wanted to hear. Apparently, all the abuse allegations turned out to be false:
An opinion of non-infringement from competent counsel is a valid defense to willful patent infringement. If a party is found to have willfully infringed another's patent, the damages against it can be enhanced (i.e. tripled). On the other hand, if the party has a proper non-infringement opinion, the damages might not be tripled. Companies like Kodak only pay for non-infringement opinions to avoid having to pay triple damages and not because the opinions have any substantive value. Everyone understands that it is impossible to predict what a half-retarded federal judge or jury will do.
The trouble we have is that the USPTO only considers it "prior art" if it has been previously patented.
MercExchange's patent was found non-obvious by the trial court during the law suit. You are 100% wrong regarding what evidence can be presented to show that an invention is obvious. Both a federal court and the USPTO can consider any evidence available to one skilled in the art, which includes any publicly-accessible information. If you do some searching, you'll discover that its common for patent examiners to use archive.org to reject patent applications.
I'll even provide a link from the MPEP (the manual used by the patent office) for you.
The summary makes it seems like this technology is "patented." Apple hasn't patented this yet, they only filed a patent application which was recently published (US 20070138999). It will probably be years before the U.S. Patent Office even exams this application to determine if a patent should be granted.
It's pretty clear you haven't even looked at the "Patent Reform Act of 2007." Among its highlights include a quick post-grant opposition procedure and serious limitations on the damages an infringer may be liable for. Both of these will make all patents "less enforcible."
I'm not certain what would be original about a fake ID. By definition, the layout of the fake ID (i.e. the arrangement of its components) is copied from another source (an actual ID). As such, the layout and text of the fake ID would not be considered "original" under U.S. law (see Baker v. Seldon, 101 U.S. 99 (1879).
The only possible "original" work that a fake ID would include is a photograph. Because an ID photo is of a standard format with little room for artistic expression, I'm not certain the photograph would even be eligible for copyright. Of course, this isn't legal advice.
Ever play Operation Flashback? Among other features, it had a campaign where you played as an insurgent against Russian occupying forces. It was a great game for its time.
I'm not sure why this was modded "informative." The scope of a patent is always determined by its claims (see 35 U.S.C. 112. The language you copied is a standard disclaimer relating to the doctrine of equivalents. . The clause is always included in patent applications because it is impossible to describe all minor variations of an invention (using a nail instead of a screw, using C++ instead of C, etc.).
Greg Aharonian is actually not a lawyer but a searcher that specializes in busting patents and exposing corruption and incompetence at the U.S. Patent Office. So, he is exactly the type of person/. should like. Greg's site is www.bustpatents.com.
For its time, the Jaguar was quite a system (as was the Lynx, Atari's 16-bit color handheld). Alien v. Predator on the Jaguar, released in 1994, was way ahead of its time and for several years was one of the best console games. See Wikipedia for screenshots. Of course, this was the only game that was any good for Jaguar which doomed the system.
Slashdot Mirror
Few patents target software per se. Most "software patents" actually claim (cover) computing hardware that implements some allegedly novel/non-obvious functionality. In any event, why allow someone to patent an application-specific integrated circuit that performs new function X but not a FGPA configured via a HDL that performs new function X?
The Patent Act of 1790 was considered a complete disaster by everyone. The "modern" US patent law was set forth in the Patent Act of 1832: http://en.wikipedia.org/wiki/Patent_Act_of_1836
Despite all the FUD in the comments, Apple has patented a very narrow set of gestures. The claims of the patent determine its scope and not anything else. Claim 1 is:
1. A computing device, comprising: a touch screen display; one or more processors; memory; and one or more programs, wherein the one or more programs are stored in the memory and configured to be executed by the one or more processors, the one or more programs including: instructions for detecting one or more finger contacts with the touch screen display; instructions for applying one or more heuristics to the one or more finger contacts to determine a command for the device; and instructions for processing the command; wherein the one or more heuristics comprise: a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display; a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display; and a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.
Although silly and probably invalid, the claim is limited to a very specific method of differentiating 1D vertical scrolls from 2D panning (using an angle of finger movement). One could easily implement multi-touch--and even 1D and 2D screen translation commands--with other methods.
The patent goes back to November 1999. Good prior art would have to be published before November 1998 (your paper looks like it was published in 2001).
The Federal Circuit disagrees with your interpretation of Rule 56 through ridiculous holdings like Dayco (329 F.3d 1369) and McKesson (403 F.3d 1048). Patent applicants follow the Federal Circuit and not the Patent Office as to what Rule 56 requires.
As you appear to work at Patent Office, I'm curious as to how you think filing a large IDS will "harass" the Patent Office into granting claims? It takes all of 5 seconds for the Examiner to initial form 1449 and move on.
Amazon, and all other patent applicants, tend to submit large volumes of information for consideration by examiners. Both federal law and patent office rules (37 CFR 1.56) require applicants to submit information that is "material" to patentability -- which federal courts have construed to mean anything that remote relates to the invention.
So, if you forget to submit a single page of information (out of 10 million) that has some marginal relation to your invention (in this case, probably a printout of every existing ecommerce site), your patent could be held unenforceable due to "inequitable conduct."
You clearly have no idea about what you are talking about. The Patent Office is the only agency that makes money (patent applicants pay more money in fees than it costs to run the Patent Office) so the people are not subsidizing anything. Until recently, Congress used to steal (divert) the PTO's extra fees to pay for other administrative agencies in addition to paying for the PTO.
Actually, I think you would do quite well at the patent office, or anywhere else in the Bush administration. You seem to think that an executive-branch bureaucrat (patent examiner) should be able to independently and arbitrarily determine what the law is--regardless of the legislation passed by Congress or a U.S. courts interpretation of that legislation.
A patent can be invalidated due to prior art located anywhere in the word. Why should I have to pay a fine if I do an extensive electronic database search and get a patent, only to find out years later that my invention was written on one Greek paper in one Greek library, accessible only through a manual card catalog search in Greek at that library (note: these are the facts of a real case)?
Of the 7 million plus issued U.S. patents, only a small percentage (less than 1%) have ever been asserted or invalidated by a court. Under your system you are going to pay your bonus for 99% of all patents since most patents are never asserted in court and are never invalidated.
that the user has to lift and drop the 50lb weight 170 times before the LED will be illuminated. To publicly display the lamp, and fool the contest people, I'm sure the lamp was charged (by lifting the weight 169 times or by directly charging the lamp's battery) before the contest with a charge just below that required to light the LED.
This is why people go to doctors for medical advice. People used to trust their doctors to make informed medical decisions because the doctors have the education and training needed to make such decisions. I imagine it is a recent phenomenon that the uneducated masses believe they know more about a particular subject (like the neurological effects of thermisol) than trained professionals who have devoted their lives to studying the particular subject.
The Patent Office (executive branch) created rules that were contrary to the laws passed by Congress (legislative branch). The laws passed by Congress (the Administrative Procedure Act) state that the remedy in such a situation is to file suit against the agency (Patent Office) in federal court (judicial branch). The problem here is that the Patent Office overstepped the authority granted to it by Congress. Congress could change the law if it wanted to (and it might, see the Patent Reform Act of 2007), but the Patent Office can't change the law on its own.
This injunction will certainly last, the Patent Office clearly violated the law in promulgating these new rules.
The law requires it. The Federal Courts have invented a doctrine known as "inequitable conduct" that requires a patent applicant and its attorney to submit every document they have access to that could potentially be relevant to the application. So, if you are a corporation with a resource library that relates to your products, you have to submit the entire resource library or risk committing inequitable conduct. In every patent infringement trial, the infringer accuses the patent owner of hiding information from the patent office, no matter how much information is submitted. So the natural recourse is to submit everything.
Under the current system, the easiest way for examiners to get quota points is to reject applications, which is exactly what they do. Over 95% of patent applications are initially rejected, which is why the patent process is so expensive. See SSRN for a published study that addresses the quota issue in detail.
The U.S. Court of Appeals for the Federal Circuit (the Court that hears patent appeals) recently addressed this issue (in the context of arbitration) and determined that you can't patent a method that can be performed mentally (e.g., all in a person's head). So, to answer you question, you can't patent a business method if it isn't limited to use of a particular machine (like a processor that executes an arbitration algorithm).
How did the movie industry avoid film patents by moving to California? U.S. patents have been enforceable anywhere an infringer resides since 1836. The article you cite says that the courts broke up the patent trust on antitrust grounds, which allowed independent studios to freely operate. Perhaps the courts are also the best way to stop software patents?
The McMartin preschool criminal trial is a better example than the 20/20 episode you mention. In the McMartin case, hundreds of children told investigators they were abused because the children thought that was what the investigators wanted to hear. Apparently, all the abuse allegations turned out to be false:
http://www.law.umkc.edu/faculty/projects/ftrials /mcmartin/mcmartin.html
An opinion of non-infringement from competent counsel is a valid defense to willful patent infringement. If a party is found to have willfully infringed another's patent, the damages against it can be enhanced (i.e. tripled). On the other hand, if the party has a proper non-infringement opinion, the damages might not be tripled. Companies like Kodak only pay for non-infringement opinions to avoid having to pay triple damages and not because the opinions have any substantive value. Everyone understands that it is impossible to predict what a half-retarded federal judge or jury will do.
MercExchange's patent was found non-obvious by the trial court during the law suit. You are 100% wrong regarding what evidence can be presented to show that an invention is obvious. Both a federal court and the USPTO can consider any evidence available to one skilled in the art, which includes any publicly-accessible information. If you do some searching, you'll discover that its common for patent examiners to use archive.org to reject patent applications.
I'll even provide a link from the MPEP (the manual used by the patent office) for you.
The summary makes it seems like this technology is "patented." Apple hasn't patented this yet, they only filed a patent application which was recently published (US 20070138999). It will probably be years before the U.S. Patent Office even exams this application to determine if a patent should be granted.
It's pretty clear you haven't even looked at the "Patent Reform Act of 2007." Among its highlights include a quick post-grant opposition procedure and serious limitations on the damages an infringer may be liable for. Both of these will make all patents "less enforcible."
Here are some more informed opinions on the legislation:8 1 l ?articleID=199400075
http://www.law.com/jsp/article.jsp?id=11780966825
http://www.eetimes.com/news/semi/showArticle.jhtm
I'm not certain what would be original about a fake ID. By definition, the layout of the fake ID (i.e. the arrangement of its components) is copied from another source (an actual ID). As such, the layout and text of the fake ID would not be considered "original" under U.S. law (see Baker v. Seldon, 101 U.S. 99 (1879).
The only possible "original" work that a fake ID would include is a photograph. Because an ID photo is of a standard format with little room for artistic expression, I'm not certain the photograph would even be eligible for copyright. Of course, this isn't legal advice.
Ever play Operation Flashback? Among other features, it had a campaign where you played as an insurgent against Russian occupying forces. It was a great game for its time.
I'm not sure why this was modded "informative." The scope of a patent is always determined by its claims (see 35 U.S.C. 112. The language you copied is a standard disclaimer relating to the doctrine of equivalents. . The clause is always included in patent applications because it is impossible to describe all minor variations of an invention (using a nail instead of a screw, using C++ instead of C, etc.).
Greg Aharonian is actually not a lawyer but a searcher that specializes in busting patents and exposing corruption and incompetence at the U.S. Patent Office. So, he is exactly the type of person /. should like. Greg's site is www.bustpatents.com.
For its time, the Jaguar was quite a system (as was the Lynx, Atari's 16-bit color handheld). Alien v. Predator on the Jaguar, released in 1994, was way ahead of its time and for several years was one of the best console games. See Wikipedia for screenshots. Of course, this was the only game that was any good for Jaguar which doomed the system.